Administrative Law Hall – Fall 2014
Administrative Law
*Made up of 2 major components:
what rules and procedures govern agencies
what laws do agencies produce
Administrative Procedure Act
*Agencies are called departments on the federal level (headed by “secretary”) and w/in agencies are sub-agencies (headed by “director”, “commissioner”, etc.)
* Agencies are further divided into 2 different kinds:
Independent – has a level of autonomy both politically and legally since they are not personally appointed by the president, they have to removed for cause, have to be composed with bi-partisan parties who server 4 yr. staggered terms so that they cannot be replaced all in one term. They are also a governing body (not run by one person).
Executive – personally elected by the president and essentially serve at president’s will.
*APA doesn’t consider presidents as an agency.
*Governmental agencies serve 2 functions
regulatory – tells private actors what they can and cannot do
dispenses entitlement
*It is important to note that most agencies do not fit neatly into these 2 categories.
* Agencies engage in 3 different types on action:
Judicial – many claims are actually settled by agency adjudication.
Legislative – rulemaking à congress delegate to agency the power to essentially fill in blanks of certain statutes, regulations because Congress cannot fill in every single detail.
Executive – carrying out the regulations (ex. Site visitations)
* Most agencies have all three powers so there is an issue of separation of powers. Thus agencies are subject to judicial review and most important they are ruled by the APA which subjects agencies to certain procedures. Attorneys are really what checks that agencies.
*APA was passed after WWII and FDR and the New Deal à fed gov. grew tremendously and it was determined that there needed to be some checks on it.
*APA defines rulemaking (any agency statement w. future effect can be formal or informal although formal is very rare) and adjudication (any final agency action other than rulemaking can be formal or informal although only formal when it specifically says so. Informal is still governed by statute.
*Judicial review applies to both rulemaking and adjudication only limited if 1. statute precludes review; 2. when congress gives agency discretion.
Decision has to be final
Person/entity has to have standing
Topic has to be ripe
Standard of review: de novo, substantial evidence, abuse of discretion
Person seeking review has to have exhausted any administrative remedies.
Rulemaking
*Agencies need a statute that allows the agency the authority to promulgate rules. Sometimes it will be in the Rules Enabling act or Congress may pass laws.
*After an agency has the authority for rulemaking, they do not seem to have the sources for prioritizing promulgation of rules, so it can be done any of the following ways:
Bottom – up à
Top – down à sometimes orders may come directly from Congress or the president to focus the attention to a certain issue. Congress pushes for their agenda basically through informal threats made by individuals as opposed to a whole.
Lobbying – can also have public lobby for certain agendas but this one is really a mix of bottom-up and top-down.
Petition through APA §553 (e) – which gives the right to petition which is usually the way that lawyers take.
*Steps that one should take in suggesting regulations…
Before actually contacting the agency, one should figure out allies, get info, etc.
The contact staff of the EPA because they are in the know
When lobbying an agency, don’t focus on ur own agenda but rather, how if helps promote agency’s goals
Bottom-up approach would be to contact lower offices
Top – down would to be contact Congress, (u’ve done the research, agency is busy…yadda yadda)…if Congress can send someone from their office to discuss it with the agency.
File petition – don’t think like an adversarial attorney…work with agency 1st before filing the paperwork. Paperwork will need to be filed because it gives agencies political cover…so when administrators receives calls from those opposing the idea they can say where the rule come from… ideally, petition comes after bottom-up and top-down. Should also file when agencies do not respond.
Telecommunications Research and Action Center (∏) v. Federal Communications Commission(∆) [64]
*tried in DC circuit court – most admin. law cases go here.
Facts: ∏ petitioned ∆ in 1979 to decided whether AT&T overcharged customers. After periodically claiming a decision, ∆ still had not decided the issue 5 yrs. later. ∏ filed suit for a mandamus to compel decision
Holding: Court examines if the delay was egregious. There really is no standard for this determination and while it was an extensive delay, it was not long enough to give adverse decision but court will still retain jurisdiction as this might prompt the agency to take action.
*It is important to note that deadlines don’t always mean it will be done. There are many reasons why it can’t be done. Just because Congress gives deadlines it does not mean that the court would rule against the agency because there could be many reasons for delay.
Arkansas Power & Light Co. (∏) v. Interstate Commerce Commission (∆) [69]
Facts: ∏ wanted review of rates which where charged by the railroads so they petitions ∆ to institute rulemaking to collect date so rates would be approved. ∆ determined that it was unnecessary, not required by the statue, and too burdensome. ∏ filed suit to compel the rulemaking and collection of data.
Holding: Court ruled that denial seems like a probable outcome. Thus, there is no basis for court to step in and compel agency action.
Massachusetts v. EPA [70]
Northern Spotted Owl (∏) v. Hodel (∆)
Facts: In Jan. 1987 ∆ was petitioned to include the northern spotted owl on the endangered species list. Public opinion was sought and experts were charged with reviewing the data. The biologists determined the owls should be placed on the list, but ∆ announced that it would not list the owls. ∏ field suit against ∆.
Holding: Judged under arbitrary and capricious review à meaning that the agency really has a lot of deference but in this case, they screwed up. In this case, ∆ seems to have ignored expert opinions and have not provided any credible alternative explanations. Decision was indeed arbitrary and capricious. Remanded back to ∆ for analysis of its decision w/in 90 days.
APA RULEMAKING PROCEDURES (EXCEPTION AND FORMAL/I
re not the only factor to be considered, the language of the Esch Act does not indicate that formal rulemaking was to be involved.
*Why do courts employ the strict interpretation?
Agencies get deference in interpreting statutesà unless the statute explicitly states then the court will not step in. Also, if the APA wanted it, then they would have put it in.
*Why do entities care about what is on record?
Because in trial, only what is on record can be used, any additional reasoning as to why the rule was promulgated that is not on the record cannot be used.
U.S (∆) v. Florida East Coast Railroad Co. (∏) [92]
Facts: ∆ adopted rules regarding per diem charges on boxcars following an informal conference. The lower court invalidated ∆’s actions.
Holding: The APA states the evidentiary requirements for formal hearings but does not mandate that formal hearings always be held. When a statute does not expressly require a formal hearing, the agency in question may, when conducting rulemaking, take evidence by written submission if agency believes a formal hearing unnecessary. Here, the ∆ took extensive steps to obtain evidence through written submission. Since this court has already held that Interstate Commerce Act does not require hearings, the ∆’s actions were proper. Reversed.
*Court hearings are not important for rulemaking b/c there is no factual dispute in policy making. Thus, hearing in administrative law doesn’t necessarily mean hearing in the trial sense.
Vermont Yankee Nuclear Power Corp. (∆) v. Natural Resources Defense Council, Inc. (∏) [93]
Facts: ∆ promulgated a rule on nuclear wastes, which was struck down on review because of alleged procedural defects.
Holding: Absent constitutional restraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their duties. If courts continually review agency proceedings to determine whether the agency employed procedures which were what the court perceived to be the best of correct results, judicial review would be totally unpredictable. The fact that the court looked only at the record and not at information available to the ∆ when it decided to structure the proceedings in a certain way is an example of Monday morning quarterbacking. This type of review misconceives the standard for judicial review of an agency rule; rulemaking need not be based solely on the transcript of a hearing.
*This is a pro-agency decision. Court basically says that agencies are in charge and we are going to defer to them.
